Just when is an employer required to hire those taking prescription pain medications? In Clipse v. Commercial Driver Services, Inc., the Washington Court of Appeals held that Commercial Driver Services, Inc. was liable under the Washington Law Against Discrimination (“WLAD”) for not hiring a commercial truck driver for taking a prescribed narcotic. Commercial Driver Services is a commercial driving school. Clipse was hired as a driving instructor contingent on passing a physical examination. The physical examination revealed that Clipse was taking the narcotic drug methadone for chronic pain from a torn rotator cuff. However, Clipse showed that he could safely drive while on his medication, and the examining physician provided Clipse with a one year medical examiner's certificate qualifying him to drive a commercial vehicle.

CDS refused to hire Clipse, telling him to get "cleaned up" and expressing a worry that Clipse might "relapse." CDS later argued that it did not hire Clipse because it had a "no tolerance" drug policy. However, the sole reference to drugs in CDS' s Employee Guidelines prohibited the “use or possession of alcohol or controlled substances" on CDS' s grounds, and prohibited employees from reporting to work "while under the influence of alcohol or any unlawful controlled substance." The drug policy made no reference to prescription drugs. CDS also claimed that it was a standard company practice to require a two-year medical examiner's certificate, although it had no written policy to this effect.

The Court of Appeals held that Clipse provided sufficient evidence to sustain a jury verdict that CDS discriminated against him on the basis of actual and perceived disability in violation of the WLAD, and affirmed the jury's damages award –$79,300 for past wages and $5,700 for noneconomic damages.

With respect to Clipse's promissory estoppel claim, the Court of Appeals found that Clipse presented no evidence that CDS promised him permanent employment subject only to dismissal for just cause, and held that the trial court erred in refusing to grant CDS judgment as a matter of law on this claim.

The Court of Appeals further held that retrospective jury damages in a WLAD suit are not wages employers are obligated by statute to pay, thus precluding an award for double damages.

Takeaway points for the employers:

  • This case is of particular importance to employers in safety-sensitive industries, since many legally prescribed medications could impair an employee’s ability to safely work with machinery. Even still, safety concerns may not shield employers from liability under the WLAD where the narcotic medication is legally prescribed.
  • It is important to continue to train your human resources professionals and supervisors regarding employees’ rights and employers’ obligations under the WLAD and federal discrimination laws.
  • Employers must continue to have an “interactive dialogue” with employees about accommodations and ways the person could perform the job. This case emphasizes that employer assumptions of capability and risk are insufficient to overcome the legal duty to accommodate.
  • Employers should review, and if necessary revise, handbooks, policies and procedures pertaining to the employee prescription drug use.